Partners cannot be treated as employees for the purpose of determining the applicability of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

( 1 ) THE order dated March 14, 2001 contained in Annexure "p- 11" has since been challenged. Learned counsel for the Petitioners contends that the provisions of the Employees' provident Funds and Miscellaneous Provisions act, 1952 was made applicable in the said order passed under Section 7-A of the said Act to the petitioner's establishment on the ground that there is more than 20 employees. While calculating the number of employees, the authority had taken into consideration the 16 employees employed in the establishment added with the five partners who are also employed in the establishment and received remuneration. The authority had relied on a decision in Writ Petition No. 13605 (W) of 1999 s. G. Tin Printers Pvt. Ltd. v. RPF commissioner, disposed of on January 21, 2000. In the said decision, it was held that the persons who receive remuneration are also the employees. It appears that against the said decision an appeal was preferred. The Division bench in its decision in S. G. Tin Printers Pvt. Ltd. v. RPF Commissioner, reported in 2001-I-LLJ-628 (Cal) had held that the same person cannot hold dual capacity one as employer as well as employee. Therefore, the said decision in S. G. Tin Printers Pvt. Ltd. was reversed. Therefore, the order impugned should be quashed irrespective of the fact that the same is appealable under Section 71 of the said Act, since it cuts at the root of the jurisdiction without requiring any determination of the facts when admittedly the five persons were treated as employees in order to cover 20 employees in the establishment.

( 2 ) LEARNED counsel for the respondents on the other hand points out that this Writ Petition is not maintainable in view of Section 71 of the said Act which provides for an appeal before the Tribunal which is adequate alternative remedy. The appeal involves the question of determination of fact which can best be decided by the Tribunal. The writ jurisdiction should not be exercised in order to determine such questions. He contended that even on merits this Writ Petition cannot succeed since the petitioner was given adequate opportunity to appear before the authority and despite such opportunity the Petitioner had not appeared before the authority. Therefore, he should approach the appeal Court in order to determine such question which the appeal Court can decide. Alternatively he contends that this matter may be remanded to the authority concerned where the Petitioner may be given an opportunity to make out the case once again.

( 3 ) AFTER hearing the learned counsel for the parties, it appears that admittedly there were 16 employees. Five partners, who admittedly received remuneration, were also treated as employees and were added in the establishment to cover the minimum number of employees in order to attract the application of the 1952 Act. The said order had taken note of the decision in S. G. Tin Printers Pvt. Ltd. which admittedly stands overruled by the decision reported in 2001-I-LLJ-628 (Cal ). Thus it appears that it goes to the root of the jurisdiction of the authority concerned so as to attract the application of the said Act to the establishment. The Division Bench in the said decision held that one person cannot be an employer and at the same time an employee. Therefore, the partners could not be treated to be employees in order to attract the application of the Act. As soon as reliance was placed on a decision which was overruled, the decision cannot be sustained. In the present case, no amount of determination of fact is involved. It is only the law that is to be explained. In the admitted facts and circumstances of the case, the law as stands does not make the provision of the said Act applicable to the establishment of the Petitioner by including five partners in the category of employees so as to satisfy the minimum number of employees, in the establishment. Though appeal is available under Section 71 of the said Act and is definit